IMPORTANT POINT
The prosecution must prove all elements of copyright infringement, including ownership and the nature of the alleged infringing copies, for a conviction to be upheld.

ORDER :

(K. Babu, J.)

The challenge in this Crl. Revision Petition is to the judgment dated 30.12.2004 in C.C.No.288 of 2002 convicting the revision petitioner/accused under Sections 51(a) and 52A r/w 63 of the Copyright Act, 1957 (‘the Act’ for short) passed by the Judicial First Class Magistrate Court-I, Kannur and confirmed by the Sessions Court, Thalassery, in the judgment dated 24.01.2012 in Crl.Appeal No.15 of 2005.

2. The prosecution case is that the accused was found engaged in the sale of fake audio cassettes on 10.10.2001 at 16.00hrs on the footpath in front of building bearing No.KM 35/1203 at the northern side of the road leading to Muneeswaran kovil in Kannur.

3. The offences were detected by the Sub Inspector of Police, Kannur Town Police Station. The Additional Sub Inspector of Police, Kannur Town Police Station, conducted a part of the investigation. The Sub Inspector of Police, Kannur Town Police Station, completed the investigation and submitted the Final Report.

4. The trial Court and the Sessions Court concurrently found that the accused committed the offences alleged.

5. The learned counsel for the revision petitioner submitted that the prosecution failed to establish the essential ingredients of the offences under Sections 51(a) and 52A of the Act.

6. Section 51(a) reads thus:-

“51. When copyright infringed.— Copyright in a work shall be deemed to be infringed—

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or”

7. Section 14 of the Act, defines ‘copyright‘. Section 14 reads thus:-

14.Meaning of copyright.-- For the purposes of this Act, “copyright“ means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely;-

(a) in the case of a literary, dramatic or musical work, not being a computer programme,--

“(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);…...”

8. Section 2(m) of the Act defines the term ‘infringing copy‘. Section 2(m) reads thus:-

“2 (m) “infringing copy” means—

(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;”

9. In the present case, the prosecution allegation is that fake audio cassettes were sold by the accu